DAO17 v Minister for Immigration

[2018] FCCA 3500

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3500

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in assessment of evidence – whether Tribunal erred in unreasonably refusing to accept documentary evidence – whether Tribunal erred in overlooking or failing to give proper, genuine and realistic consideration to documentary evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.101, 107, 108, 109, 430

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant: DAO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2130 of 2017

Judgment of: Judge Smith

Hearing date: 12 November 2018

Date of Last Submission: 12 November 2018

Delivered at: Sydney

Delivered on: 12 November 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the First Respondent: Mr P M Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The applicant has leave to rely on the amended application filed on 27 August 2018.

2. Should a transcript of today’s proceedings be prepared, the applicant’s name, wherever appearing, be redacted and replaced with the pseudonym on the Court’s file.

3. The application be dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2130 of 2017

DAO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 1 June 2017. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s protection visa under s.109 of the Migration Act 1958 (Cth).

2. Broadly speaking, the provisions for cancellation pursuant to which the delegate’s decision was made is that s.101 of the Act requires visa applicants not to include incorrect answers in their visa applications. Section 107 provides that the Minister may, if he considers that s.101 amongst other provisions may not have been complied with, give notice of that potential non-compliance to the applicant and give the applicant the opportunity to traverse the possibility that that non-compliance, if satisfied, might lead to cancellation of the visa. Section 108 then provides that after considering any response to the s.107 notice, the Minister can decide whether or not there has been non-compliance in the way described in the s.107 notice and s.109 then provides that if they are satisfied, the Minister may cancel a visa.

3. The issues in this case concern the Tribunal’s assessment of whether there was non-compliance in the way that was set out in the s.107 notice which I will come to in due course. However, the non-compliance did have an impact upon the discretionary considerations.

4. The applicant arrived in Australia with his son and brother on 27 November 2011 and he was granted a protection visa on 3 July 2012.  His application for that visa was based on his claim that he was a stateless Bidoon and a former habitual resident of Kuwait. He claimed that he was discriminated against because of his statelessness and had attended a rally for Bidoon rights in Kuwait in February 2011 and subsequently was detained by security forces and tortured.  He feared that if he participated in further rallies he would be burnt alive.

5. On 19 December 2012 the applicant lodged a sponsorship application for his wife and four children for a partner visa.  In that application, he provided a number of documents which included Iraqi personal identification cards and also statements to the effect that the applicant had been born in Iraq.

6. On 23 December 2016 a delegate of the Minister sent a “Notification of Intention to Consider Cancellation” pursuant to s.107 of the Act to the applicant. It outlined a number of matters upon which the delegate stated that it appeared that the applicant had given false answers in his protection visa application, essentially to the effect that the applicant was not a Bidoon from Kuwait as claimed, but rather was an Iraqi citizen. Part of the issue was that the applicant had provided, as I have noted, an Iraqi identification document.

7. The applicant replied to that Notice with written submissions in which he explained the way in which he had obtained the Iraqi identification document and maintaining that he had told the truth in his protection visa application.  In addition he submitted, through his agent, a number of identification documents which I will refer to as the “Kuwaiti Identification Documents”, which are summarised at [23] of the applicant’s submissions:

   ...

   a) CB 65-68 - which appear to be Kuwaiti documents evidencing that the applicant was born in Kuwait and attended secondary school in Kuwait; and

   b) CB 201-219 (which appears to be folios 82-100 of the Department’s file) which comprised:

   i. Kuwait Ministry for Public Health personal particulars card for the applicant’s mother (CB 201-202) (note match with mother’s name at CB 52);

   ii. Kuwait certificate of marriage between applicant’s parents dated 6 March 1972 (which document appears to be registration by the applicant’s parents in Kuwait on 6 March 1972 of their marriage in 1954) (CB 203-204) (note partial match with parents’ name at CB 52);

   iii. Kuwait employment document for applicant’s father with unknown issue date (CB 205-206);

   iv. Kuwait passport for applicant’s father which appears to have been renewed in 1984 (CB 207-209);

   v. Kuwait Ministry for the Interior certificate of retirement for the applicant’s father issued on 12 June 1988 (CB 210-212);

   vi. Kuwait Ministry for Public Health certificate of birth for applicant’s father issued in 1972 (CB 213-214);

   vii. Kuwait Ministry for Public Health personal particulars card for applicant with unknown issue date (CB 215-216); and

   viii. Kuwait Ministry for Public Health birth certificate for applicant issued in April 1972 (CB 217-219).

8. On 24 February 2017 a delegate of the Minister made the decision to cancel the applicant’s protection visa and the applicant applied to the Tribunal for review of that decision.

9. The applicant was invited to attend a hearing to be conducted by the Tribunal and prior to that hearing submitted, through his agent, a further written submission concerning the availability of forged identification documents and some documents in support of that submission.  The applicant attended the hearing conducted by the Tribunal and was represented by his migration agent.  In addition, his brother and son attended to give evidence.

10. During the course of the hearing the applicant was asked by the Tribunal if there was any other document that it did not have and he produced the original of one of the Kuwaiti Identification Documents, being a Kuwaiti birth certificate.  What occurred in respect of that document is subject to the second ground in the application and I will return to that in more detail in due course.

11. On 1 June 2017 the Tribunal made its decision to affirm the delegate’s decision. 

12. Having set out the summary of the background to the application for review and the evidence given at the hearing, the Tribunal at [49]-[55] of its reasons set out its analysis and conclusions in respect of the central factual issue: namely, whether the applicant was Iraqi or a stateless person from Kuwait. It stated at [50] that the evidence that the applicant was Iraqi was overwhelming and referred to that evidence in [51].

13. At [51], the Tribunal noted that by contrast, the evidence concerning the applicant being a Bidoon lacked credibility.  It noted at [51] that it lent little weight to the documents that he claimed indicate his father’s presence in Kuwait as a Bidoon, noting that documents such as the birth certificate at folio 88 (being reference to the Department’s file), were for somebody by the name of Ali born to a father by a particular name, while in the partner visa application the father’s name was listed differently.  The Tribunal rejected the applicant’s explanation for the difference. 

14. At [52]-[54], the Tribunal dealt in some detail with the applicant’s explanation for the fact that the applicant had an Iraqi ID card and found that that was not credible. In [55] it noted that it had taken into account the documentary evidence provided, such as the Kuwaiti Identification Documents (again referring to folio numbers in the Department’s file) but lent them little weight. It concluded that it lent more weight on the implausibility of the applicant’s claims and the nature of the information that indicates the applicant’s Iraqi nationality. The Tribunal concluded the applicant had not complied with the Act in the ways described in the s.107 notice and then turned to the question of whether the discretion to cancel the visa ought to be exercised in the applicant’s favour or against him.

15. As none of that consideration was subject to the grounds of review, I will not set it out in any detail in these reasons but note that it addressed the matters raised by the applicant, as well as the matters proscribed by the Act and Migration Regulations 1994 (Cth) and concluded that having taken those matters into account the visa ought to be cancelled. For that reason the Tribunal affirmed the decision of the delegate.

16. The applicant was given leave to rely on three grounds in his amended application, being grounds 1, particulars A and B, ground 2 and ground 3.

17. The first ground may be summarised by the following propositions. First, the Tribunal rejected the Kuwaiti Identification Documents because of the discrepancy in the names between those documents; secondly, some, but not all of the documents had the naming discrepancy; and thirdly, it was either unreasonable or irrational for the Tribunal to reject these documents on that basis of this fact and the rejection of them revealed a failure to give the documents proper, genuine and realistic consideration.

18. The Minister submitted that the error underlying the ground is that it ignores the context in which the Tribunal’s express consideration of the documents was made.  I accept that submission.

19. It is important to note that the critical issue before the Tribunal was in fact, a binary one, namely, was the applicant Iraqi or was he a Bidoon? The evidence went two ways:  first, there was evidence from, amongst other things, the applicant’s wife’s visa application which stated that he was Iraqi and the other, provided by the applicant in amongst other things, the Kuwaiti Identity Documents, suggested that he was Kuwaiti. There was, in fact, no middle ground between the two. Thus a conclusion about the credibility of one of those sets of documents, although necessarily not to be made in the absence of consideration of the other, was going to have an impact upon the consideration of the other and whether or not the Tribunal was going to accept them.

20. At [50], the Tribunal stated that the evidence that the applicant was Iraqi was overwhelming.  At [52]-[54], it rejected the applicant’s explanation because the applicant already had an Iraqi ID card.  Those were the two things at the end of [55] that the Tribunal gave greater weight to: namely, the implausibility of the applicant’s explanation and the nature of the information indicating the applicant was of Iraqi nationality.  It was in that context that the Tribunal’s express consideration of the documents going the other way are to be understood.  

21. At [51], the Tribunal gave one reason for which it did not accept that some of the documents were credible, namely, the documents “such as the birth certificate” and explained the anomaly in the name.  However, it did not reason from that proposition alone that none of the Kuwaiti Identity Documents were credible or indeed, as suggested in argument by the applicant, that they were all non-genuine.  As I have noted, the weight to be given to the documents, and the reason for the weight given to the documents have to be understood in light of both the issues and the Tribunal’s consideration of the opposing set of documents.

22. Secondly, at [55] the Tribunal explains that it has other reasons in respect of its assignation of weight to some of the other documents relied upon by the applicant, including the STARTTS[1] letter and a lease agreement provided by the applicant.  The fact that there were anomalies in some of the naming conventions was, it was accepted by the applicant, a rational basis for not giving weight to those particular documents.

    [1] New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.

23. However, I do not read [55] in the context of the whole of the decision and in particular [49]-[55] as being that that was the sole basis for which the Tribunal ascribed little weight to the Kuwaiti Identification Documents. Further, I do not consider that it reveals that the Tribunal did not have regard to them at all. It clearly referred to all of the documents, being the documents at folios 82 to 100 in the Departmental file. The fact that it did not make any express finding about some of the documents that did not have the naming anomaly cannot, in all of the circumstances, support an inference that it did not have proper regard to them.

24. I add to that the fact that the documents themselves were not particularly complex and it would not have been a difficult thing for the Tribunal simply to have a look at them briefly to understand what they said and to understand, as it is obvious on any reading, that they are entirely inconsistent with the documents that support the conclusion that the applicant was an Iraqi citizen. For those reasons, the first ground is rejected.

25. The second ground is that the Tribunal acted unreasonably by failing to accept from the applicant the original of his Kuwaiti birth certificate.  The circumstances of the proffer of the original document at the hearing are set out in annexure A to the affidavit of Ms Aboaal[2]:

    [2] Affidavit of Bianca Louise Aboaal affirmed 30 October 2018.

    Member:I have a range of other certificates which we can talk about during the hearing, is there anything that you would like to bring up at that moment, that I haven’t included? any documents that I haven’t included ?

    Applicant :this is my Kuwaiti birth certificate, the original one .

    Member:I have a photo copy here, is that the same ?

    Applicant :this is the original

    Member:I will just make sure I have the right one. In the cancellation

    Applicant :my education certificates also .

    Member:we can get on to the certificate a little bit later

    Representative :     member, it is in the Migration file .

    Member:thanks for that, I will give it back to you at the end, yes I know that's in there somewhere. Where about’s is Nasria and Kuwait?

    (Without alteration)

26. In his affidavit[3], the applicant’s solicitor provides some further context that gives an understanding as to what occurred during the passage of the hearing transcribed in Ms Aboaal’s affidavit and I set out [5]- [8] of Mr Alkafaji’s affidavit below:

    [3] Affidavit of Ali Alkafaji affirmed 30 October 2018.

    5. As stated in the transcript, the applicant said to the Tribunal member (“the Member”):

    “This is my Kuwaiti birth certificate, the original one.”

    At the time, I observed the applicant offer to the Member an original Kuwaiti birth certificate. The certificate was in the applicant's hand, and the applicant held out the certificate to the Member.

    6. Prior to the hearing, the applicant had shown me the original birth certificate. I read and understand Arabic. The original Kuwaiti birth certificate appeared to me to be the original of a copy of a birth certificate for the applicant which I had previously provided to the Department with an English translation. The copy in Arabic and English translation are at pages 217 to 219 of the Court Book.

    7. The Member looked at the original document in the applicant’s hand, then looked at his papers, and then showed the applicant a document from his papers and said:

    “I have a photocopy here. Is that the same?”

    The applicant responded (indicating the document in his hand):

    “This is the original.”

    The Member responded:

    “I will just make sure I have the right one. In the cancellation ...”

    During this exchange, the Member waved away the original birth certificate in the applicant’s hand. The Member did not take or offer to take the original birth certificate. The applicant then put away the original birth certificate.

    8. The applicant then picked up copies of some education certificates, and offered the education certificates to the Member. The applicant said:

    “My education certificates also.”

    The Member took the education certificates and said:

    “We can get to the certificate a little later.”

    At the time the Member said this, he indicated by a gesture that the certificate he said he would get to a little later were the education certificates.

    (Without alteration)

27. I accept, in light of that evidence as the Minister submitted, that the applicant attempted to hand the Tribunal member the original birth certificate and that the Tribunal sought to determine whether it had a copy of the certificate in the material.  It did in fact have a copy of the certificate and for that reason, as said by Mr Alkafaji, waved away the original birth certificate. The applicant submits that this was unreasonable because had the Tribunal had the original birth certificate then it was possible that it could have come to a different view on the credibility of the documents in question.

28. A finding of unreasonableness can arise in a number of different circumstances in administrative decision making.  It might, for instance, be a conclusion based upon the finding of some other identifiable jurisdictional error such as a denial of procedural fairness or making a finding of fact not based on the evidence. It might be on the other hand, based on the failure to exercise, or the improper unreasonable exercise of a discretionary power, or even a failure to consider such an exercise such as the case was in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, being a failure to exercise a power to adjourn.

29. In the latter circumstance, the Court will have regard to any reasons given by the Tribunal or administrative decision-maker for not exercising a discretion or if there are none, then to examine for itself to see whether the outcome of the non-exercise is outside the scope of decisional  freedom, as described by the plurality in Li. In doing so, the Court will have regard to the whole context of the proceeding including the statutory context and other matters.  It is to be noted, as it was in Li and more recently in Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713, that findings of unreasonableness are rare.

30. In this case it cannot be contested that by failing to accept the original document from the applicant the Tribunal did not deny itself any information which it already had.  The information concerning the date and place of the applicant’s birth was in the copy of the certificate that it had before it. It was not suggested by the applicant or his agent at the hearing during the discussion of whether or not the Tribunal would accept the document that the original might make a difference;  that it might have some bearing on its acceptance of the weight, for example, to be given to the document already before the Tribunal. 

1. The certificate itself was not something which, in the context of all of the other evidence, was in and of itself of such critical input, that is, the original of such critical input that the Tribunal could not properly have proceeded to a decision without it.  As I have noted, it already had a copy. 

2. In all of those circumstances, I cannot see that the Tribunal’s failure to accept the original at the hearing was a decision or a failure to exercise a power that no reasonable decision-maker could have made.  In other words, that it was outside the scope of the power given to it by the Act and the Regulations so as to be described as unreasonable and to vitiate its decision.  For that reason, I would reject ground 2. 

3. The third ground in the application is that the Tribunal fell into jurisdictional error in making a finding at [50] that the evidence that the applicant was Iraqi was overwhelming.  On its face, this is no more than an attack on the merits of the finding of fact which was clearly supported by the material referred to immediately after the finding, namely; the applicant possessed an Iraqi national identification card. His family also possessed Iraqi national identity cards; they were in Iraq; they have Iraqi passports and Basra in Iraq was listed as their place of birth. 

4. However, it is contended in written and oral submissions that the ground is, in fact, based on the contention that the Court ought to infer that the Tribunal overlooked the applicant’s Kuwaiti birth certificate in deciding that the applicant was born in Iraq. I accept the general proposition that where a decision-maker overlooks important evidence concerning a material issue that might constitute jurisdictional error: see VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [72] and [112] and following. It may also be, given the obligation in s.430 to prepare a statement of reasons referring to evidence upon which material findings of facts are based, that the failure to refer to some material can lead to an inference that that material has been overlooked: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.

5. In this case however, the Tribunal did refer to the Kuwaiti birth certificate.  The birth certificate which is at pp.217-219 of Exhibit A were, it was accepted by the applicant, also in folios 82, 83 and 84 of the Department’s file.  In [55] of the Tribunal’s document, the Tribunal expressly referred to those folios stating:

   I have taken into account the documentary evidence he has provided, such as the Kuwaiti documents (folios 82-100) …

6. In light of that express reference I infer that the Tribunal did in fact have regard to the documents.  I would also note, as I have already observed, the fact that the Kuwaiti birth certificate is not a complicated document supports the inference that I have drawn from the reference at [55] to the folios.  For that reason, given that the factual basis of ground 3 has not been made out, the ground itself must be rejected.

Conclusion

1. I am not satisfied that there is any jurisdictional error in the Tribunal’s decision, and the application must be dismissed. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 December 2018